The Vaccine Mandate -- Now What?

As you probably know, last Thursday the Occupational Safety and Health Administration issued its emergency temporary standard (ETS) requiring employers with 100 or more employees to require COVID-19 vaccination with limited exceptions, or masking and weekly testing.  The deadline for most of the ETS’ requirements, including surveying employee vaccination status, drafting a vaccination policy, and requiring masking for unvaccinated employees is December 5, 2021.  The ETS’ testing deadline is January 4, 2022.  However, on Saturday, the United States Court of Appeals for the Fifth Circuit (which covers Texas), stayed the ETS, finding that it raises “grave statutory and constitutional issues.” So what is a covered employer to do?

We will not hazard a guess as to whether the ETS will ever take effect, but we do recommend that you begin planning as if it will go into effect given its rapidly-approaching December 5, 2021 deadline.  Here are three things you should be doing:

1. Begin collecting the vaccine status of your employees if you have not already done so. For employers who began gathering this information prior to the issuance of the ETS, the proof of vaccination status you have used will generally suffice (so long as it is in writing and you did not rely on a verbal statement that was not captured in writing).  In other words, you do not have to go back and redo your documentation to comply with the ETS.
2. Begin devising your written vaccination policy, including how best to require testing and determining who will cover the cost of the weekly tests. OSHA has published a policy template to give you a head start.  That is attached.
3. Finally, begin drafting your vaccination status roster. Under the ETS, employers have to have a roster of all personnel that includes the vaccination status of each employee. The roster must be readily available so that it can be produced to OSHA upon request. The regulations detail what must be included in this roster, but it needs to list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.

We are ready and available to help you comply with your requirements under the ETS.  We will also be conducting a webinar on the ETS, so stay tuned for details on that.

In the meantime, stay safe and let us know if we can help.

Thanks, Jack, Elizabeth and Jim